Search This Blog

Saturday, August 12, 2017

UNPFII Report on Cross-border issues

Future
work of the Permanent Forum, including issues of the Economic and Social
Council and emerging issues

Cross-border
issues, including recognition of the right of indigenous peoples to trade in
goods and services across borders and militarized areas

Note by the Secretariat

At
its thirteenth session, the Permanent Forum on Indigenous Issues appointed
Megan Davis, a member of the Forum, to conduct a study into cross-border
issues, including recognition of the right of indigenous peoples to trade in
goods and services across borders and militarized areas (see E/2014/43, para. 69). The final report
will be released during the fourteenth session of the Forum. An overview of the
issues that will be presented in the final report is hereby submitted to the
Forum.

Overview of the
study into cross-border issues, including recognition of the right of
indigenous peoples to trade in goods and services across borders and
militarized areas

I.Introduction

1.Cross-border
issues are prevalent in the international normative framework dealing with
indigenous rights because the territories and relationships of indigenous
peoples often transcend imposed national borders. Colonial and postcolonial
processes saw the arbitrary imposition of borders, with no regard for cultural
relationships or traditional migration routes.[1] The manifestations of cross-border issues are many and complex
because indigenous culture is inextricably linked to land. The right to
self-determination, the fundamental norm underpinning indigenous peoples’
rights in international law, is affected when indigenous peoples are unable to
freely exercise their rights to lands, waters and resources, education and
language, access to health care and/or traditional medicines. Indeed,
international indigenous trading routes were affected, and often prohibited,
with the imposition of borders. Before the colonization period, trade was
integral to indigenous cultures and was an “aboriginal world system” predicated
upon international trade between aboriginal tribes.[2]

2.Cross-border
issues affect indigenous peoples from every region. They are frequently raised
at the annual sessions of the Permanent Forum on Indigenous Issues, as
reflected in the recommendations cited below, and in the context of thematic
sessions such as those on the Doctrine of Discovery. The prevalence of such
issues explains why cross-border rights are the subject of article 36 of the
United Nations Declaration on the Rights of Indigenous Peoples, which reads as
follows:

1.Indigenous peoples, in particular those
divided by international borders, have the right to maintain and develop
contacts, relations and cooperation, including activities for spiritual,
cultural, political, economic and social purposes, with their own members as
well as other peoples across borders.

2.States, in consultation and cooperation
with indigenous peoples, shall take effective measures to facilitate the
exercise and ensure the implementation of this right.

3.No
study could comprehensively capture the full extent of indigenous cross-border
issues, which include collective identity, public health and management of natural
resources and languages.[3] The present document is a précis of the larger study into
cross-border issues, including recognition of the right of indigenous peoples
to trade in goods and services across borders and militarized areas. The study
is aimed at providing an insight into cross-border issues affecting the world’s
indigenous peoples, without exhaustively cataloguing every cross-border
situation. It should be noted that the issue is more pronounced in Africa,
North America and South America and the Arctic.

II.International law framework

4.Articles
3, 26, 32, 33 and 36 of the United Nations Declaration on the Rights of
Indigenous Peoples refer to indigenous peoples’ right to self-determination;
rights to the lands, territories and resources which they have traditionally
owned, occupied or otherwise used or acquired; and right to maintain and
develop contacts, relations and cooperation, including activities for
spiritual, cultural, political, economic and social purposes, with their own
members as well as other peoples across borders.

5.Article
32 of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), of the
International Labour Organization Convention (ILO) states that “Governments
shall take appropriate measures, including by means of international
agreements, to facilitate contacts and cooperation between indigenous and
tribal peoples across borders, including activities in the economic, social,
cultural, spiritual and environmental fields”.

6.Article
12 of the International Covenant on Civil and Political Rights reads as
follows:

1.Everyone lawfully within the territory of a
State shall, within that territory, have the right to liberty of movement and
freedom to choose his residence.

2.Everyone shall be free to leave any country,
including his own.

3.The above-mentioned rights shall not be
subject to any restrictions except those which are provided by law, are
necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms
of others, and are consistent with the other rights recognized in the present
Covenant.

4.No one shall be arbitrarily deprived of the
right to enter his own country.

7.Article
27 of the Covenant reads as follows: “In those States in which ethnic,
religious or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members of their group,
to enjoy their own culture, to profess and practise their own religion, or to
use their own language.”

8.The
Permanent Forum on Indigenous Issues has made several recommendations
pertaining to cross-border issues. In 2009, it urged the Nordic States to
ratify, as soon as possible, the Nordic Sami Convention, which could set an
example for other indigenous peoples whose traditional territories were divided
by international borders (E/2009/43,
para. 55).

9.In
2010, it recommended that the Governments of Canada and the United States of
America should address the border issues, such as those related to the Mohawk
Nation and the Haudenosaunee Confederacy, by taking effective measures to
implement article 36 of the United Nations Declaration on the Rights of
Indigenous Peoples (E/2010/43, para.
98). Article 36 states that indigenous peoples divided by international borders
have the right to maintain and develop contacts, relations and cooperation with
their own members as well as other peoples across borders.

10.In
2013, the Permanent Forum expressed alarm at the continuing acts of violence
being perpetrated against indigenous peoples by Member States and others. It
therefore acknowledged the need for States to establish a monitoring mechanism
to address violence against indigenous peoples, including assassinations,
assassination attempts and rapes, and intimidation of indigenous peoples in
their attempts to safeguard and use their homelands and territories that
transcended national borders, including the non-recognition of their membership
identification and documents and the criminalization of their related
activities. It said that specific attention must be paid to such actions being
perpetrated by State and local police, the military, law enforcement
institutions, the judiciary and other State-controlled institutions against
indigenous peoples (E/2013/43, para.
41).

11.Also
in 2013, the Permanent Forum noted that education in the mother tongue and
bilingual education, foremost in primary and secondary schools, led to
effective and long-term successful educational outcomes. It urged States to
fund and implement the Programme of Action for the Second International Decade
of the World’s Indigenous Peoples. It underlined the need for States to respect
and promote indigenous peoples’ definitions of learning and education, founded
on the values and priorities of the relevant indigenous peoples, noting that
the right to education was independent of State borders and should be expressed
by indigenous peoples’ right to freely traverse borders, as supported by
articles 9 and 36 of the United Nations Declaration on the Rights of Indigenous
Peoples (ibid., para. 16).

III.Brief overview of issues

12.The
following is a conspectus of the issues raised in the study aimed at
highlighting the historical significance of indigenous relationships, including
trade, that traverse national borders and some of the indigenous human rights
issues involved. It involves short extracts from the case studies on Australia,
North America and the Arctic.

Australia

13.The
Australian continent was once a network of complex trading activity between
aboriginal nations. Those cross-border relationships have been captured more
recently through the native title system. Trade routes criss-crossed the
continent and aboriginal nations traded in goods such as pearl shell,
spearheads, stone axes, bailer shell, cabbage palm baskets and turtle shell.[4]

14.Generally,
trade routes lay like fine mesh over the land, representing a network of
interaction that traditionally linked many differently oriented cultural and
language groups. Goods moved initially within the range of recognized kin and
then

to defined partners living in adjacent territories and then further afield,
travelling clockwise or anti-clockwise according to convention.[5]

15.The
most commonly known account of international trade in Australia is that of the
Yolngu and other aboriginal groups in the far north of the country, who
established a long-standing trading partnership in trepang (also known as sea
cucumber or bêche-de-mer), prized by the Chinese as an aphrodisiac, with the
Macassans from Indonesia, who traded with China during the eighteenth century.[6] The trading relationship included turtle shell, pearl shell and
buffalo horn in return for dugout canoes, tobacco, rice, cloth, iron and
alcohol. Every wet season between the late 1600s and 1906, Macassan sailors
traded with the Yolngu along the coast of the Arnhem Land region. The Yolngu
were employed to collect and cure the trepang and paid in knives, food and
tobacco, establishing the first Australian export industry.[7]

16.The
trading links lasted until they were statutorily prohibited, in particular by
South Australia. Thus, indigenous trade routes and concentrations of indigenous
power were “inadvertently refocused by the imposed patterns of foreign
exploration, exploitation and settlement”.[8] Laws prohibiting established trading links and restricting the
capacity to freely engage in trade contributed to the cycle of poverty that has
endured in indigenous Australia. Today, there are many ways in which
cross-border issues arise in relation to criminal law and criminal jurisdiction
and native title and land law.

North America

17.Before
colonization, indigenous peoples traded with nations such as Great Britain and
Spain that wished to “secure alliances and ensure the perpetuation of trading
relations for mutual benefit”.[9] It is said that “States competed with one another for access to
indigenous trade and took steps to insure that their relations with indigenous
nations were tranquil”.[10] The relationships were recognized in treaties such as the Jay Treaty,
signed in 1794, and the Treaty of Ghent, signed in 1814. Over time, the
colonizer’s desire to exploit natural resources and dominate markets resulted
in dishonoured treaties and trading clauses in treaties that continue to this
day.

18.Policies
were implemented that forced indigenous peoples from their lands, territories
and resources. Once the traders had established their factories and forts,
assembled sufficient arms and munitions and secured independent means of food
supply, they were able to bargain with the local peoples from positions of
greater strength. Trading relations soon became more unequal. The situation was
compounded by devastating epidemics of introduced diseases that reduced native
numbers and undermined their morale.9

19.Indigenous
rights were referred to in the Jay Treaty and the Treaty of Ghent, signed by
Great Britain and the United States.[11] The Jay Treaty, for example, established a right of passage across
the border, including to freely engage in trade or commerce with other indigenous
nations and not to have to pay duties. Its article 3 begins as follows:

It is agreed
that it shall at all times be free to His Majesty’s subjects, and to the
citizens of the United States, and also to the Indians dwelling on either side
of the said boundary line, freely to pass and repass by land or inland
navigation, into the respective territories and countries of the two parties,
on the continent of America (the country within the limits of the Hudson’s Bay
Company only excepted)

20.Over
time, however, those rights have been repealed through legislative acts
pertaining to citizenship and litigation. There are many regions in North
America where cross-border issues affect indigenous peoples, for example along
the borders between the United States and Mexico and the United States and
Canada, including the specific case of Alaska.

21.For
the Tohono O’odham Nation in Arizona, the militarization of the border between
the United States and Mexico has impeded the flow of tribal members across
traditional lands.[12] The Treaty of Guadalupe Hidalgo established the border in 1848.
Over time, State notions of citizenship have sought to displace indigenous
notions of identity and sovereignty, thereby impeding the ability of the Tohono
O’odham to freely cross the border to engage in religious ceremonies and
socialize. The consequences of this unfreedom include environmental problems,
difficulties in gaining access to medical treatment and antisocial activity in
communities.[13]

22.The
Haudenosaunee, or the Six Nations of the Iroquois Confederacy, are a federation
of six original indigenous nations in North America (Mohawk, Oneida, Onondaga,
Cayuga, Seneca and Tuscarora). They live along the border between the United
States and Canada. However, the border, as drawn by those countries, runs
through their territorial and ancestral lands. They have frequently raised
cross-border issues at the sessions of the Permanent Forum. Their lands and
territories and cross-border rights are acknowledged in the Jay Treaty and the
Treaty of Ghent.

23.Today,
issues pertaining to cross-border travel include confiscation of property,
harassment and denial of identity. The regulation of borders creates stress for
communities, for example by affecting access to medical treatment. In addition,
States take punitive approaches to breaches of regulations, such as the
imposition of financial penalties for failure to report at a port of entry. In
addition, reporting requirements are cumbersome and an additional layer of
administration. The Haudenosaunee, through the Permanent Forum and the Special
Rapporteur on the rights of indigenous peoples, have sought to negotiate a
solution to the situation. The Forum considered the issue at its ninth session
and recommended that the Governments of Canada and the United States should
address the border issues (see para. 9 above). The recommendation has yet to be
realized.

Arctic region

24.The
larger study involves a case study on the Inuit and the Sami. In the interests
of brevity, only the situation of the Sami is described herein. The Sami live
in Finland, Norway, the Russian Federation and Sweden and have done so since long
before non-Sami settlement.[14] They have a common history, culture, language and traditional
livelihoods. The borders that divide their ancestral lands (Sápmi) were
constructed from the middle of the eighteenth century. Over time, their
regulation became increasingly punitive. For example, the non-Sami attitude
towards reindeer husbandry became more hostile, with national borders being
closed to reindeer one by one (by Finland and Norway in 1852 and Finland and
Sweden in 1888).[15]

25.The
Special Rapporteur on the rights of indigenous peoples addressed the issue in a
report in which he described the impact of State borders on the composition of
the Sami population, noting that they cut through linguistic and cultural
communities and constrained reindeer-herding activities and that Nordic
Governments primarily followed policies that were aimed at assimilating the
Sami into the majority societies (A/HRC/18/35/Add.2,
para. 7).

26.The
Nordic Sami Convention is an instrument aimed at dealing with cross-border
issues and is, according to the Special Rapporteur on the rights of indigenous peoples,
“the first attempt anywhere to create a regional treaty specifically concerning
indigenous peoples” (ibid., para. 11). It highlights what is regarded as best
practice in terms of tackling cross-border issues, namely negotiations and
agreements aimed at the recognition of cross-border rights and arrangements by
which self-determination can be effectively achieved.

IV.Conclusion

27.The
literature on indigenous peoples and cross-border rights suggests, as does
international jurisprudence, that bilateral and international agreements are
the best way to approach cross-border peoples. For example, the Indigenous and
Tribal Populations Recommendation, 1957 (No. 104), of ILO states that
cross-border issues should be resolved “by means of agreements between the
Governments concerned, to protect semi-nomadic tribal groups whose traditional
territories lie across international boundaries”. In Indigenous & Tribal Peoples’ Rights in Practice: A Guide to ILO
Convention No. 169, it is indicated that:

Indigenous
peoples’ right to maintain and develop contacts and cooperation across national
boundaries is by its nature different from other internationally recognised
rights of indigenous peoples, as its implementation requires political,
administrative and/or legal measures from more than one State. A precondition
for the implementation of this right is thus that the States concerned have a
friendly and cooperative relationship upon which specific arrangements for the
implementation of this right can be established.

28.It
is stated in article 36 (1) of the United Nations Declaration on the Rights of
Indigenous Peoples that it is the right of indigenous peoples to maintain and
develop contacts, relations and cooperation, including activities for
spiritual, cultural, political, economic and social purposes, with their own
members as well as other peoples across borders. Furthermore, it is indicated
in article 36 (2) that States, in consultation and cooperation with indigenous
peoples, must take effective measures to facilitate the exercise and ensure the
implementation of this right. This can enable transparent communication between
States and indigenous groups and enable indigenous peoples to move freely in
order to participate in cultural, social, spiritual, economic and environmental
activities. The Nordic Sami Convention is an example of how to deal with
cross-border issues. Another example is legislation aimed at cross-border
mobility, such as that enacted in Guinea. The larger study will include case
studies of cross-border issues in each indigenous region.

[5]See Kim Akerman, “Material
culture and trade in the Kimberleys today”, in Aborigines of the West: Their Past and Their Present, 2nd ed.,
Ronald M. Berndt and Catherine H. Berndt, eds. (Perth, University of Western
Australia Press, 1980).

[6]See Marcia Langton, Trepang: China and the Story of Macassan —
Aboriginal Trade (Melbourne, University of Melbourne, 2011).

[8]See Clive Moore, “Refocusing
indigenous trade and power: the dynamics of early foreign contact and trade in
Torres Strait, Cape York and southeast New Guinea in the nineteenth century”, Journal of the Royal Historical Society of
Queensland, vol. 6 (2000).

[9]See Marcus Colchester and
Fergus Mackay, “In search of middle ground: indigenous peoples, collective
representation and the right to free, prior and informed consent”, paper
presented at the tenth Conference of the International Association for the
Study of Common Property, Oaxaca, Mexico, August 2004.